[Cite as State v. Davis , 2016-Ohio-7347.]

IN THE COURT OF APPEALS OF OHIO 

THIRD APPELLATE DISTRICT 

AUGLAIZE COUNTY 

 

STATE OF OHIO, 

 PLAINTIFF-APPELLEE, CASE NO. 2-16-09 

 v. 

JAMARCUS TERRELL DAVIS, O P I N I O N 

 DEFENDANT-APPELLANT. 

 

Appeal from Auglaize County Common Pleas Court 

Trial Court No. 2015-CR-151 

Judgment Affirmed 

Date of Decision: October 17, 2016 

 

APPEARANCES: 

 

Rob C. Wiesenmayer for Appellant 

 Benjamin R. Elder for Appellee 
Case No. 2-16-09 

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ROGERS, J. 

{¶1} Defendant-Appellant, Jamarcus Terrell Davis, appeals the judgment of 

the Court of Common Pleas of Auglaize County convicting him of possession of 

heroin, attempted possession of having a weapon while under a disability, and 

illegal conveyance of cocaine into a jail and sentencing him to a total of 66 months 

in prison. On appeal, Davis argues that the trial court erred in failing to consider 

and apply the felony sentencing guidelines and sentencing him to a total prison term 

that exceeded the maximum prison term allowed for the most serious offense of 

which he was convicted. For the reasons that follow, we affirm the judgment of the 

trial court. 

{¶2} On December 17, 2015, the Auglaize County Grand Jury returned a 

five-count indictment against Davis charging him with one count of complicity to 

trafficking in heroin in violation of R.C. 2923.03(A)(2) and 2925.03(A)(2), 

(C)(6)(e), a felony of the fourth degree; one count of possession of heroin in 

violation of R.C. 2925.11(A), (C)(6)(b), a felony of the fourth degree; one count of 

possession of cocaine in violation of R.C. 2925.11(A), (C)(4)(a), a felony of the 

fifth degree; one count of having a weapon while under disability in violation of 

R.C. 2923.13(A)(2), a felony of the fourth degree; and one count of illegal 

conveyance of cocaine into a jail in violation of R.C. 2921.36(A)(2), a felony of the 

third degree. Davis entered pleas of not guilty to all charges. 
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{¶3} After a period of plea negotiations, an agreement was reached whereby 

Davis agreed to enter a plea of guilty to one count of possession of heroin in 

violation of R.C. 2925.11(A), (C)(6)(b), a felony of the fourth degree; one count of 

attempted having a weapon while under a disability in violation of R.C. 2923.02 

and 2923.13(A)(2), a felony of the fourth degree; and one count of illegal 

conveyance of cocaine into a jail in violation of R.C. 2921.36(A)(2), a felony of the 

third degree, in exchange for the State’s dismissal of the remaining charges and a 

recommendation that Davis be sentenced to a total of 59 months in prison. 

{¶4} At the change of plea hearing, the State explained the facts underlying 

the charges: 

On December 9th of 2015, the St. Marys Police Department received 

a call from the manager at America’s Best Value Inn located there is 

St. Marys, Auglaize County, State of Ohio, and reported that an 

individual identified as Alisha Hashman had rented room 231 and had 

been there for a couple of days and had just paid for a third day and 

that the management had noticed between five (5) and six (6) cars 

would pull up and go into room 231 and then leave after a very short 

period of time. This is the only room rented in this particular building 

at the time. Upon learning this information, Task Force set up 

observation on December 10th and observed Justin Yates and Alisha 

Hashman sitting in a silver Acura parked in front of room 231. The 

hotel had identified the Acura as being associated with the room. 

[Davis] was seen exiting room 231 and appeared to check the door to 

ensure that it was locked. The three (3) then got in the Acura and 

drove down to Dayton. The Task Force followed them to Dayton to 

an exit, Needmore Road, where they entered an apartment complex; 

were there for four (4) or (5) minutes then exited and returned heading 

northbound on 75. At one point shortly thereafter they turned around 

and went back to the apartment off Needmore Road for another five 

(5) or six (6) minutes roughly, then turned around and came back 
Case No. 2-16-09 

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north on 75 returning into Auglaize County. The driver, at that time, 

was Alisha Hashman. She was under suspension and a stop was 

conducted of the vehicle at U.S. 33 and County Road 33 in Moulton 

Township, Auglaize County. The State of Ohio officers identified a 

strong odor of marijuana coming from the vehicle and the occupants 

were removed from the vehicle and patted down for the officers’ 

safety. While the officers were conducting a pat down of [Davis], a 

grey powdery substance in a baggie fell out of his pant leg, which was 

later identified as 3.78 grams of heroin as tested by the Bureau, or 

BCI&I. Once the baggie fell out of his pants, he was then taken to the 

jail and interviewed; was asked if he had anything else on him at 

which point he did not represent anything about the cocaine. Once he 

was in the intake area, he was again searched and a baggie - another 

baggie fell out of his pant leg which was found to be cocaine, 

weighing 0.84 grams. A search was conducted pursuant to a search 

warrant of the hotel room, room 231, there in St. Marys at the 

America’s Best Value Inn. During that search, officers found a Uzi 

submachine gun 9 mm weapon with ammunition in a red bag. Inside 

the bag was a receipt from Verizon in the name of [Davis]. That 

weapon was tested by BCI&I and found to be operable in both the 

semi and fully automatic modes. 

Feb. 29, 2016 Hrg., p. 20-22. Davis then admitted that he sold a few thousand 

dollars’ worth of drugs per week and had purchased the gun from an affiliate of “the 

Bloods” for his and his family’s protection. 

{¶5} A subsequent pre-sentence investigation report detailed Davis’s lengthy 

criminal history, including multiple juvenile convictions, multiple misdemeanor 

convictions, and one felony conviction. It also noted a ORAS-PIT score of “high 

risk.”1

 

 

1

 This is an assessment designed to predict an offender’s likelihood of recidivism. 
Case No. 2-16-09 

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{¶6} A few months later, a sentencing hearing was held, where the trial court 

engaged in a lengthy colloquy with Davis about his criminal history. Then it stated, 

After consideration of the information provided to the Court by the 

parties, the [p]resentence [i]nvestigation, purposes and principles of 

felony sentencing under Section 2929.11 and the criteria set forth in 

Chapter 2929 of the Revised Code, noting [Davis’s] ORAS score of 

very high range specifically being thirty four [sic] (34), noting 

[Davis’s] prior repeat violence of, - offenses of violence, and noting 

the nature of the weapon being a [sic] automatic capable machine gun 

fully operable, the Court SENTENCES [Davis] as follows: as to 

COUNT II, POSSESSION OF HEROIN, a felony in the fourth 

degree, EIGHTEEN (18) MONTHS IN THE DEPARTMENT OF 

REHABILITATION AND CORRECTIONS * * *; as to AMENDED 

COUNT IV, ATTEMPTED POSSESSION OF A WEAPON UNDER 

DISABILITY, a felony of the fourth degree, EIGHTEEN (18) 

MONTHS; and as to COUNT V, A CHARGE OF ILLEGAL 

CONVEYANCE OF DRUGS INTO A JAIL, a felony of the third 

degree, THIRTY (30) MONTHS. 

May 13, 2016 Hrg., p. 20-21. 

{¶7} The Court further stated 

that consecutive service is necessary to protect the public from future 

crime and to punish the offender and that consecutive sentences are 

not disproportionate to the seriousness of the offender’s conduct and 

the danger the offender poses to the public, and * * * that the 

offender’s history of criminal conduct demonstrates that consecutive 

sentences are necessary to protect the public from future crime by the 

offender. 

Id. at p. 21. 

{¶8} The trial court memorialized its decision by entry dated May 16, 2015. 

In its entry, it reiterated 
Case No. 2-16-09 

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that the offender shall serve the prison terms consecutively, pursuant 

to R.C. 2929.14(C)(4), because the court finds that the consecutive 

service is necessary to protect the public from future crime or to 

punish the offender and that consecutive sentences are not 

disproportionate to the seriousness of the offender’s conduct and to 

the danger the offender poses to the public, and * * * the offender’s 

history of criminal conduct demonstrates that the consecutive 

sentences are necessary to protect the public from future crime by the 

offender. 

(Docket No. 70, p. 2). 

{¶9} It is from this judgment that Davis appeals, presenting the following 

assignments of error for our review. 

Assignment of Error No. I 

THE TRIAL COURT COMMITTED ERROR TO THE 

SUBSTANTIAL PREJUDICE OF THE 

DEFENDANT/APPELLANT IN ENTERING CONVICTIONS 

AND IMPOSING CONSECUTIVE SENTENCES [SIC] WAS 

[SIC] CONTRARY TO LAW AND FURTHER CONSTITUTED 

AN ABUSE OF DISCRETION IN FAILING TO PROPERLY 

CONSIDER AND APPLY THE FELONY SENTENCING 

GUIDELINES SET FORTH IN OHIO REVISED CODE, 

SECTION 2929.22 AND 2929.12. 

Assignment of Error No. II 

THE TRIAL COURT’S SENTENCE OF THE DEFENDANTAPPELLANT TO CONSECUTIVE SENTENCES THAT 

EXCEED THE MAXIMUM PRISON TERM ALLOWED FOR 

THE MOST SERIOUS OFFENSE OF WHICH DEFENDANT 

WAS CONVICTED [R.C. 2921.36(A)(2)]. 

{¶10} Due to the nature of Davis’s assignments of error, we elect to address 

them together. 
Case No. 2-16-09 

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Assignments of Error Nos. I & II 

{¶11} In his first and second assignments of error, Davis argues that the trial 

court erred in failing to consider the purposes and principles of sentencing in R.C. 

2929.11 and the sentencing factors in R.C. 2929.12. Specifically, Davis argues that 

those purposes, principles, and factors, do not support “imposing a consecutive 

sentence including the maximum sentence for [possession of heroin] and [attempted 

having a weapon while under a disability] * * *.” Appellant’s Brief, p. 11. Davis 

further argues that the trial court erred in imposing a total prison term that exceeded 

36 months, the maximum prison term for a third-degree felony. We disagree. 

{¶12} “A trial court’s sentence will not be disturbed on appeal absent a 

defendant’s showing by clear and convincing evidence that the sentence is 

unsupported by the record or otherwise contrary to law.” State v. Barrera, 3d Dist. 

Putnam No. 12-12-01, 2012-Ohio-3196, ¶ 20. Clear and convincing evidence is that 

“which will produce in the mind of the trier of facts a firm belief or conviction as to 

the facts sought to be established.” Cross v. Ledford, 161 Ohio St. 469 (1954), 

paragraph three of the syllabus. 

{¶13} R.C. 2929.11(A) provides, “A court that sentences an offender for a 

felony shall be guided by the overriding purposes of felony sentencing. The 

overriding purposes of felony sentencing are to protect the public from future crime 

by the offender and others and to punish the offender using the minimum sanctions 
Case No. 2-16-09 

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that the court determines accomplish those purposes * * *.” “In order to comply 

with those purposes and principles, R.C. 2929.12 instructs a trial court to consider 

various factors set forth in the statute relating to the seriousness of the conduct and 

to the likelihood of the offender's recidivism.” State v. Davis, 3d Dist. Auglaize No. 

2–11–06, 2011-Ohio-5441, ¶ 14, citing R.C. 2929.12(A)-(D). “[I]n addition, the 

court may consider any other factors that are relevant to achieving the purposes and 

principles of sentencing.” R.C. 2929.12(A). 

{¶14} “However, the trial court is not required to use specific language 

regarding its consideration of the seriousness and recidivism factors.” State v. 

Holbrook, 3d Dist. Auglaize No. 2-13-06, 2013-Ohio-3786, ¶ 10, citing State v. 

Smith, 3d Dist. Auglaize No. 2–06–37, 2007–Ohio–3129, ¶ 26. There is also no 

requirement in R.C. 2929.12 that the trial court state on the record that it has 

considered those factors. Smith at ¶ 26, citing State v. Polick, 101 Ohio App.3d 428, 

431 (4th Dist.1995). 

{¶15} Furthermore, if multiple prison terms are imposed on an offender for 

convictions of multiple offenses, the court may require the offender to serve the 

prison terms consecutively if the court finds: 

that the consecutive service is necessary to protect the public from 

future crime or to punish the offender and that consecutive sentences 

are not disproportionate to the seriousness of the offender’s conduct 

and to the danger the offender poses to the public, and if the court also 

finds any of the following: 
Case No. 2-16-09 

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* * * 

(c) The offender’s history of criminal conduct demonstrates that 

consecutive sentences are necessary to protect the public from future 

crime by the offender. 

R.C. 2929.14(C)(4)(c). 

{¶16} If a court imposes consecutive sentences, it “is required to make the 

findings mandated by R.C. 2929.14(C)(4) at the sentencing hearing and incorporate 

its findings into its sentencing entry.” State v. Bonnell, 140 Ohio St.3d 209, 2014-

Ohio-3177, ¶ 37. “The court should also include its statutory findings in the 

sentencing entry because a court speaks through its journal.” State v. Noble, 3d 

Dist. Logan No. 9-14-06, 2014-Ohio-5485, ¶ 13, citing Bonnell at ¶ 29. However, 

the court need neither state its reasoning to support its findings nor must it provide 

a ‘talismanic incantation’ of R.C. 2929.14(C)(4). Bonnell at ¶ 37. 

{¶17} Here, Davis argues that the “offenses were not the most serious form 

of the offenses for which he was convicted, and therefore, the imposition of 

maximum, consecutive sentences of imprisonment is not supported by the record.” 

Appellant’s Brief, p. 10. Specifically, he argues that the factors listed in R.C. 

2929.12(B) weigh in favor of a lesser sentence. He explains, 

The offense committed herein did not cause physical injury to any 

victim. No victim suffered any demonstrated or documented 

psychological harm as a result of the offense. The offender did not 

have an occupation, elected office or profession which facilitated him 

in the commission of the offenses. The offender’s personal reputation 

or occupation was not used to facilitate the commission of the offense. 
Case No. 2-16-09 

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Also, the record would suggest that [he] did not have any significant 

financial gain as a result of his actions in this matter. 

Id. 

{¶18} While some of these factors may weigh in Davis’s favor, the trial court 

was allowed to consider other relevant factors, such as Davis’s lengthy criminal 

history and the type of weapon used in the commission of the offense. R.C. 

2929.12(A)-(D). After stating that it had considered all of this information, the trial 

court sentenced Davis to prison terms within the statutory ranges and made the 

appropriate consecutive sentence findings under R.C. 2929.14(C)(4). 

{¶19} Davis also argues that the trial court erred in imposing a total prison 

term that exceeded the maximum prison term for a third-degree felony, the most 

serious offense of which he was convicted. In support, he cites R.C. 2953.08(C)(1), 

which provides, 

[A] defendant who is convicted of or pleads guilty to a felony may 

seek leave to appeal a sentence imposed upon the defendant on the 

basis that the sentencing judge has imposed consecutive sentences 

under division (C)(3) of section 2929.14 of the Revised Code and that 

the consecutive sentences exceed the maximum prison term allowed 

by division (A) of that section for the most serious offense of which 

the defendant was convicted. * * * 

{¶20} However, R.C. 2953.08(C)(1) applies only where consecutive 

sentences are imposed under R.C. 2929.14(C)(3). R.C. 2929.14(C)(3) mandates 

consecutive sentences in limited cases involving violations of R.C. 2911.01 

(aggravated robbery), 2913.02 (theft), and 2921.331 (failure to comply). Davis was 
Case No. 2-16-09 

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not convicted of any of these offenses, and therefore, R.C. 2953.08(C)(1) is 

inapplicable. 

{¶21} Considering the trial court considered the appropriate statutes, made 

the appropriate findings, and there was evidence in the record to support its findings, 

Davis has failed to prove by clear and convincing evidence that his sentence is 

unsupported by the record or otherwise contrary to law. 

{¶22} Accordingly, we overrule Davis’s first and second assignments of 

error. 

{¶23} Having found no error prejudicial to the Davis, in the particulars 

assigned and argued, we affirm the judgment of the trial court. 

Judgment Affirmed 

SHAW, P.J. and PRESTON, J., concur. 

/jlr